Friday, September 3, 2010

States Parties to the ICC Have No Obligation to Arrest Al Bashir

The ongoing saga over the presence of President Al Bashir at the promulgation of Kenya's new constitution raises interesting questions which I addressed four weeks ago in op eds in the Standard and Star Newspapers (Nairobi) following Al Bashir's first visit to a state party of the ICC: Chad.

The same arguments apply to the recent visit to Kenya:

At its summit in Kampala, the AU has repeated its call last made in July 2009 at its Summit in Sirte Libya requesting African countries not to cooperate with the ICC to arrest President Al Bashir. It comes in the wake two significant developments.

The first is the issuance of a second arrest warrant against Al Bashir by the ICC for charges of genocide after the previous arrest warrant in 2009 for alleged war crimes and crimes against humanity. The second development is the first ever visit since the arrest warrants by Al Bashir to a state party to the ICC: Chad.

The African Union (AU) has been heavily criticized by many for its stand on Al Bashir. The argument has been that African countries that are party to the Rome Statute, including Kenya have an obligation to arrest and surrender Al Bashir.
There are legal and political reasons why it would be folly to arrest Al Bashir. It will focus on the legal ones.

Those who have urged Al Bashir arrest – largely non-governmental organizations – have asserted that states parties have an obligation to arrest and surrender. They have insisted that article 27 of the Rome Statutes does not allow immunity, including that of head of state.

Yet the legal position is less straightforward than suggested.
I argue that there is no automatic obligation to arrest and surrender – and no obligation whatsoever – for these states to arrest Al Bashir, a serving head of State of a country that does not accept the jurisdiction of the ICC.
Although it is true that article 86 of the Rome Statute requires states parties to cooperate fully with the ICC and that article 27 removes immunity from the jurisdiction of the Court, that is only half of the story.

Despite the general obligation in article 86, there is no automatic obligation to arrest and surrender because article 89 provides that the Court must make a request for cooperation to a state containing specific information outlined in article 91.
However, – and this is where trouble lies for proponents of Al Bashir’s arrest – the fact that the ICC has made a request for arrest does not solve the legal problem.

Article 98(1) says that the ICC may not proceed with a request for surrender or assistance which would require the requested state to violate its obligations under international law with respect to the state or diplomatic immunity of a person ….

As confirmed by the International Court of Justice in the Arrest Warrant Case, foreign ministers and by extension heads of state cannot be subjected to judicial authority of another country, irrespective of what they are alleged to have done.

Article 98(1) was intended to preserve obligations of states that existed under customary law even before the ICC was created. These obligations that allows heads of states and their representatives to travel freely ensure smooth relations between states.

While states continue to recognize Al Bashir as President of Sudan, who is designated by Sudanese people to transact for them abroad, they cannot touch him. Otherwise, they will be in breach of article 98.

In fact, while knowing that States have these obligations, the Court will itself be violating the statute if it requests them to arrest. What is surprising that the ICC judges have missed two opportunities to clarify this issue.

Some people argue that recognizing immunity for sitting heads of states defeats the objects of the ICC. I beg to differ. We must distinguish immunity from jurisdiction and immunity from execution.

The operation of article 27 allows the ICC to indict even a head of state. However, article 98(1) prevents the execution of an arrest warrant in respect of a sitting head of state.

Article 98(1) then provides how we should proceed in this case: request for waiver of immunity. Only Sudanese people can waive the immunity of their President, with support for states: state unequivocally that they do not recognize Al Bashir’s Presidency.

As long as they do not do this, they cannot arrest him legally. The legal alternative is to wait until he leaves office. It is in fact duplicitous to want to do business with Al Bashir (on Darfur, the CPA in the South and resources) while insisting that other states should arrest him.

It is exactly this that the AU opposes in different words: turning the ICC into an instrument of foreign policy.

The ICC has changed a lot of things, but it cannot change the foundations of the international legal system: the equality of states and facility in inter-state relations which is premised on ease of travel those who represent states abroad.


  1. Hello Dr. Musila,
    I strongly share your sentiments especially when it comes to regional peace and security vis a viz international obligations. Kenya owes its obligations first to the interests of the continent, before those of the international community.